James Clapper Tells Congress He Testified Falsely Because, ‘I Forgot’

Back in 2013, Director of National Intelligence James Clapper was asked by Oregon Senator Ron Wyden if the Federal Government was not collecting data on American citizens without search warrants or other Court authorization. This occurred at a hearing in March several months prior to the release of information regarding the National Security Agency’s metadata collection program, which includes the collection of phone call data regarding nearly every phone call made in the United States. Once that information became public thanks to the information revealed to Glenn Greenwald and other journalists by Edward Snowed, Wyden and other Members of Congress began to publicly criticize Clapper and to demand an explanation for why Clapper gave what clearly seems to be false testimony and then fail to take steps to correct the record either in public or in a classified briefing to committee members.

Director of National Intelligence Jim Clapper wasn’t lying when he wrongly told Congress in 2013 that the government does not “wittingly” collect information about millions of Americans, according to his top lawyer.

He just forgot.

“This was not an untruth or a falsehood. This was just a mistake on his part,” Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday.

“We all make mistakes.”

The comments add to the years of criticism that Clapper has received for his testimony in the 2013 Senate Intelligence Committee hearing.

In the public session, longtime surveillance critic Sen. Ron Wyden (D-Ore.) had asked Clapper whether or not the NSA collected “any type of data at all on millions of Americans.”

“No sir,” Clapper responded. “There are cases where they could inadvertently perhaps collect, but not wittingly.”

Just a few months later, however, leaks from Edward Snowden proved Clapper wrong. As documents released by Snowden made clear, the NSA collects records about millions of Americans’ phone calls under a program the government has said is authorized by Section 215 of the Patriot Act.

After the fact, Clapper has said that his statement was the “least untruthful” possible answer, given the secrecy of the program at the time.

Litt on Friday said that Clapper merely did not have a chance to prepare an answer for Wyden and forgot about the phone records program when asked about it on the spot.

“We were notified the day before that Sen. Wyden was going to ask this question and the director of national intelligence did not get a chance to review it,” Litt said.

“He was hit unaware by the question,” Litt added. “After this hearing I went to him and I said, ‘Gee, you were wrong on this.’ And it was perfectly clear that he had absolutely forgotten the existence of the 215 program.”

Instead, Litt said, Clapper had been thinking about separate programs authorized under Section 702 of the Foreign Intelligence Surveillance Act, which the NSA has used to collect massive amounts of foreigners’ Internet data. The law explicitly prohibits the government from gathering the same kind of data about Americans, unless it is “incidental.”

“If you read his answer it is perfectly clear that he was thinking about the 702 program,” Litt said. “When he is talking about not wittingly collecting, he is talking about incidental collection.”

Essentially what this lawyer is arguing is that Clapper was asked a question that he didn’t anticipate and, mistakenly, thought it was referring to something else entirely. Therefore, his testimony wasn’t false, it was just a mistake. One problem with that explanation is that it doesn’t appear to be one that either Clapper or anyone else in the Obama Administration has tried to make at any other time during the two years or so that this has been a point of contention between Congress and the White House. That seems especially relevant given the fact that Litt says that he brought the “mistake” to Clapper’s attention soon after his testimony in March 2013. If that was the case, then it makes no sense for either Clapper or anyone else to have brought this up over the past two years. More importantly, there is no evidence that Clapper or anyone else in the DNI’s office sought to make any effort to correct Clapper’s testimony This could have been accomplished in any number of ways, including at another public hearing, during a classified committee briefing if Clapper felt that what he was revealing would touch on classified material, or in writing, which again could have been done either publicly or in a matter to ensure that it would remain classified. What really makes Litt’s explanation of temporary amnesia incredulous, though, is the fact that Wyden had told Clapper what he was going to ask him about twenty-four hours before the hearing began. The idea that Clapper was caught off-guard, then, or that he didn’t have time to prepare in his mind a response to the question that was asked simply doesn’t comport with the evidence. Finally, the “I forgot” defense is inconsistent with Clapper’s own explanation for what happened when he talked about it the immediate aftermath of the Snowden revelations, which is that he could not properly answer Wyden’s question in an open, non-classified hearing.

Litt’s explanation for what happened is not only laughably inane, it is also inconsistent with the facts of what actually happened. If this is the best they can do, then I’m not sure why the calls for Clapper’s resignation haven’t gotten louder, or why we should believe anything he says.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Clapper would have been committing a felony by discussing classified programs in an open hearing without authorization, and Wyden well knew that, given that he sat on the Senate committee that would have been informed of the program’s existence. The question should not have been asked in that setting, given that Wyden already knew the answer to it. He wasn’t seeking information, he was trying to bypass federal law by attempting to force public disclosure of classified info.

If Wyden is so determined to derail FISA, he could have read into record his own statement about the program, and nobody would have been able to touch him, but knowingly setting out to solicit perjury was both counterproductive and uncalled for.

@HarvardLaw92: “I think he made a conscious and understandable decision to avoid violating the Espionage Act. He wasn’t, and obviously isn’t going to be, prosecuted for perjury under those circumstances.”

The only reason for taking anything into a classified session is the discussion of classified information, otherwise there is no justification for it.

The question should never have been asked in the first place. Unfortunately he can’t be prosecuted for asking it, as he deserves to be, but Wyden should have been censured and removed from his seat on the Senate Intelligence Committee.

Personally, I believe Wyden was being unfair to Clapper, but I think that Clapper should have tendered his resignation when the perjury was discovered. Sometimes the best thing to do is fall on your sword. Had he done so, he would have a won a lot of respect (although, to put it bluntly, respect can’t buy groceries).

I think that protecting classified information is more important in that scenario, and I think that the guilty party in that exchange is Wyden, for suborning perjury at a minimum, not Clapper, who was placed into an impossible situation by someone who should have known better than to do what he did in an open hearing.

You have to separate the “it should not be this way!!” emotional basis for your argument from the “it is this way because the law says that it is” reality of the situation.

The only reason to have an open hearing on intelligence agencies is to do Public Relations. Sen Wyden made use of the hearing to tangle Mr Clapper in the conundrum that HavardLaw explained. Mr Clapper’s goal was to paint the agencies’ activities as non-threatening to US citizens.

If you have predetermined in your own mind that it threatens your liberty to have the information that the phone company already keeps on your phone bill sent to government storage, then Sen Wyden’s tactics probably seem completely justified. And, with this stupid remark from Mr Litt makes plain, Sen Wyden was successful.

@HarvardLaw92: The question should be why was the fact that the NSA collecting data on US citizens classified? The tendency for government to over-classify everything is a huge problem. “This would be embarrassing if anyone found out–better make this Top Secret!”

Because advancing public knowledge of the program would run the risk of those whose activities it was actually intended to discover becoming cognizant of the fact and changing their behavior in ways intended to render it less effective, if not totally ineffective.

The bottom line for me is that the potential benefits of the program outweigh the collective outrage of hysterics who are self-absorbed enough to think that NSA cares enough about their BoringAverageLives to surveil them in the first place.

The public always thinks its entitled to know everything. For obvious reasons, that is not a viable state of affairs, although I will opine that Smith v. Maryland, U.S. v. Miller, the text of FISA and the text of the Patriot Act itself are hardly secrets. I’m not sure why people are suddenly up in arms and flipping out over something that has been the status quo for over 40 years now.

The bottom line for me is that the potential benefits of the program outweigh the collective outrage of hysterics who are self-absorbed enough to think that NSA cares enough about their BoringAverageLives to surveil them in the first place.

So, collecting tons of data with no specific end date, which may someday be catalogued and reviewed, to some day be used against some possible person at some possible later date, for some possible crime…is better than not doing it at all.

See previous comment about “hysterics”. I’d be more interested in the argument if people didn’t willingly and enthusiastically serve up a far broader swath of information, which tells a great deal more about their lives than which other numbers their phones dialed and when, to an army of private data warehouses & firms which profit from analyzing and reselling that information.

Privacy is (and has been for decades now) a myth, and one that we have to a great extent voluntarily obliterated with happy smiles on our faces, so I have a little bit of difficulty taking their sudden hysteria over this seriously. In any case, they are inventing constitutional protections for the information to which they are not entitled, but emotionally feel that they should be entitled to.

Privacy is (and has been for decades now) a myth, and one that we have to a great extent voluntarily obliterated with happy smiles on our faces, so I have a little bit of difficulty taking their sudden hysteria over this seriously.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized..

Yeah, endless NSA searches of any data it wants sounds like it fits into that requirement. Eyeroll.

Read Smith v. Maryland and get back to me. It isn’t YOUR data. It belongs to the phone company, to which you willingly and voluntarily released it when you chose to make a phone call in full knowledge that the information would be recorded and maintained by said phone company. You cede any expectation of privacy when you do that; the 4th Amendment doesn’t protect voluntarily revealed information.

If any entity potentially has any 4th Amendment claim to press here, it would be the phone company, not you, and as luck would have it, corporations do not enjoy the same degree of 4th Amendment protection as individuals. You’re arguing how you believe that it should be, not how it is.

I find it most hilarious that it took him two years to remember he forgot.
As for justifying it under the classified aspect, if the question would have been “Did the CIA murder JFK” would you give him the same latitude? Or can he use the cop’s excuse of “I wasn’t violating a clearly established right” when lying about an illegal operation?

@HarvardLaw92: I know it’s not my data. Yes, that data, if collected belongs to the provider NOT the NSA! They don’t go to a judge and ask for a warrant on a specific person, for a specific purpose, for a specific time…they just say give me all of it and we’ll decide what we need.

If privacy is so dead, then please, be the first to volunteer you house to be searched, daily, until the police can find something to book you on.

The providers released it to NSA in fulfillment of valid court orders signed by US District court judges.

If privacy is so dead, then please, be the first to volunteer you house to be searched, daily, until the police can find something to book you on.

That requires an actual warrant substantiated by probable cause. The production of third-party business records does not. None of these providers, to my knowledge, has challenged any of these legitimately constituted orders, so shouldn’t your gripe be with your phone company?

Again, you are arguing the way that you think it should be, not the way that it is.

Privacy is (and has been for decades now) a myth, and one that we have to a great extent voluntarily obliterated with happy smiles on our faces, so I have a little bit of difficulty taking their sudden hysteria over this seriously.

Hey, HarvardLaw92, what’s your real name and what law firm do you work at?

These warrants are filed in secret, the providers are given a gag order…thus it is difficult for them to challenge something you are forbidden to talk about, and the judge, who has no oversight, is part of the problem.

@Jack: The proper analogy would not be the search of the house; it would be the observation of the house from the outside. If you expect what you are calling privacy in your house, buy a really big lot and hide the house from the street. If you expect what you are calling privacy in your communications, put it on paper and send it through the mail. In those two cases you have the legal rights to ‘privacy’ in the sense that you are using the word.

Would you have the same hysterical reaction if the US gov’t had bought the information? Because, as you and I both know, your provider would have happily sold it to anyone including Boris Putin for the right price.

Legalities of who perjured himself and who suborned perjury aside, I find it hard to believe Clapper and his aides could only come up with perjury as a strategy when they were given a day to figure out a possible answer.

Perhaps they felt they had more important things to do than answer questions from Congress with any accuracy or at the very least intelligent dodging of the questions.

If you expect what you are calling privacy in your communications, put it on paper and send it through the mail. In those two cases you have the legal rights to ‘privacy’ in the sense that you are using the word.

Correct, but the information written on the outside of the envelope, which is another good analogue to this phone metadata, is fair game. It’s not protected. No warrant required.

I will agree that the best strategy in that instance would have been simply refusing to testify altogether, or advising in advance that the testimony would only be proffered in closed session. They handled it badly from a PR standpoint, but Wyden knew exactly what he was doing. The man is an attorney; he has no excuse.

@Jack: The case you are making is that the Patriot Act (or least the FISA Court part) is unconstitutional. A more clear-thinking person than yourself would be directing their unreasoning ire to the actual target which (as suggested) is your Congressperson.

Parenthetic to the main issue but of interest is that from 2001 to 2007 this surveillance was done without the thin fig leaf of a FISA warrent.

Yet again, a warrant is not required to obtain phone metadata. No establishment of probable cause is necessary. I directed you to the case establishing that this data is NOT protected by the 4th Amendment. That is fact, ergo you need to accept it as being factual. You may certainly disagree with it, but your disagreement does not change the fact that it is, well, a fact.

Given the specific verbiage of Section 215, I disagree with their ruling. That said, SCOTUS will inevitably have the last word on that subject.

The proper analogy would not be the search of the house; it would be the observation of the house from the outside. If you expect what you are calling privacy in your house, buy a really big lot and hide the house from the street. If you expect what you are calling privacy in your communications, put it on paper and send it through the mail. In those two cases you have the legal rights to ‘privacy’ in the sense that you are using the word.

No, the proper analogy is observation outside you house while using a heat/IR tool designed to display what/who is in the house. BTW, that was also deemed illegal by SCOTUS.

How thoughtful of all these Democrats, to be willing to protect the American people from uncomfortable (for them) truths.. Hillary Clinton promised that the Clinton Foundation wouldn’t accept foreign donations while she was Secretary of State, but they did. The Foundation lied on its tax forms for years to launder those foreign donations, disguising them as from other sources. Hillary was directly asked if she or anyone else was using private e-mails for official business, and stonewalled the question. And to show that she learned the most important thing from Nixon, she wiped her e-mail server clean so there wouldn’t be anything incriminating to be found.

We really should reward their sacrifices on our behalf and keep them in power.

when presented with a valid court order compelling its production? Yup …

That’s my point. Why are you being obtuse. The government is claiming their warrants are legitimate because the government says the warrant is legitimate. This circular think does not make it in fact, legal.

Hell man, even the 9th Circuit (arguably the most expansively liberal circuit court of appeals in the country) disagreed with you, finding that there is no reasonable expectation of privacy with respect to information supplied by hotel guests which is contained in a hotel’s guest registry.

And before you bring up Patel, read it closely. It doesn’t say what you think that it says.

HL92- Even if we accept your opinion that this is all Wyden’s fault, in what way does it explain Clapper’s statement that he forgot? You know, the thing this post is in regards to. In other words, instead of saying he forgot, why doesn’t he offer your defense of his behavior?

That’s my point. Why are you being obtuse. The government is claiming their warrants are legitimate because the government says the warrant is legitimate. This circular think does not make it in fact, legal.

You’re confused because you do not understand the distinction. Protected information requires obtaining a warrant, substantiated by probable cause, in order to effect a search.

ONLY protected information. If information is NOT protected, then the 4th Amendment does NOT apply and no warrant is required. All that’s necessary to obtain non-protected information is a court order compelling its production. No burden of probable cause attaches.

This is what you need to understand about your argument – the information you are referring to is NOT protected by the 4th Amendment. No warrant is ever necessary in order to obtain it. Proper procedure must be followed, resulting in a valid order from a properly constituted court, but that procedure does NOT involve establishing probable cause.

I can see why you would think that it SHOULD BE protected information, but the fact of the matter is that it is NOT.

Clapper didn’t make that statement. One of the attorneys working for his agency did.

That aside, I’d call it a poorly thought out and executed attempt at PR damage control. He can’t come out and make the argument I’d advancing for one simple reason – while legitimate, it pisses people off.

People tend to have erroneous conceptions about the 4th Amendment, what is and is not protected, and to what extent their privacy is a myth, but telling them that they are wrong – and pointing out to them why – doesn’t tend to make them happy. He’s [badly] playing politics at this point.

The government cannot just tell a company to turn over records because it wants them. It must have a warrant. Financial records, guest lists, work product, are all covered under the 4th amendment.

Look, you are just wrong about this. There is no other way to put it.

Telephone records do not enjoy a reasonable expectation of privacy with respect to the person making the calls – Smith v. Maryland

Financial records do not enjoy a reasonable expectation of privacy with respect to the banking customer – U.S. v. Miller

Guests lists do not enjoy a reasonable expectation of privacy from the perspective of the registered guest – U.S. v. Cormier, among others.

No reasonable expectation of privacy = no 4th Amendment protection. Until you understand, and accept, that concept, we’ll continue to get nowhere. You are basing your entire argument on a flawed understanding of the 4th Amendment.

@Jack: Metadata is not subject to the 4th Amendment’s warrant requirement. Period, end of discussion. The government subsequently looking through unprotected information doesn’t magically transform it into a “search” subject to the warrant requirement.

@JohnMcC: @HarvardLaw92: I read somewhere that in the 50s the FBI had a regular program of reading all the mail coming in and out of the Russian embassy. They supposedly had some method of “steaming” it open and resealing it after photocopying. So no, if the NSA wants to read your snail mail, it’s quite possible they are. They wouldn’t be able to use it in court, or even admit they’d done it, but in practice that needn’t be a major obstacle.

The government cannot just tell a company to turn over records because it wants them. It must have a warrant.

Wrong. Disclosure of metadata can be compelled with an administrative subpoena.

18 USC 2703(c)(2):

(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the—
(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).

If they were doing so without a valid warrant, in that scenario they would indeed be violating the law.

The snail mail example is the one I fall back on when trying to explain metadata to people. Your mail can’t be opened and read without a valid warrant, but no warrant is ever necessary to read the outside of the envelope.

Listen to what you are saying – you are effectively saying “I have a right to expect that information I have voluntarily given to a third party will regardless remain secret”

Once you reveal information to a third party, outside of very limited instances explicitly created by the law (priest, doctor, attorney), you have ceded privacy with respect to that information. You’re saying “this is the way that it should be”. We’re telling you “this is the way that it is, and you’re wrong.”

No, you are NOW saying that it is “wrong”. You’ve been arguing for a while now above that it is illegal. Unconstitutional.

“wrong” is a subjective determination that you’re free to make for yourself, and more power to you in that regard.

“Illegal” and “unconstitutional”, meanwhile, are not. They are what the courts say that they are, so hopefully by this point you have at least grasped why this program is arguably not illegal and certainly isn’t unconstitutional.

@HarvardLaw92: “My suggestion is to complain to Congress. They passed the laws which you’re so upset about.”

Would that be the same Congress that the intelligence agencies have decided is so toothless they cheerfully perjure themselves in front of because they know they’ll never be punished?

It’s so nice to see a creature of privilege explaning to the proles why it’s no big deal that the government spies on the citizenry, comfortable in the knowledge that since he’s wealthy and has powerful friends it will never hurt him.

Those agencies regularly brief the Intelligence committees in both houses of Congress, along with the majority and minority leaders of both houses, about their activities, as specified by the laws that Congress itself has passed to address the situation. Congress itself, by law, walled off information concerning covert activities from being revealed to Congress as a whole – for one reason: Congress leaks like a sieve.

Wyden is well aware of that, given that he sits on one of those committees and had already been briefed on the existence of and activities of this program multiple times in the past. His question in an open committee hearing 1) served no purpose, as it was asking a question that Wyden already knew the answer to, and 2) was IMO illegal – as it suborned perjury. Wyden has apparently taken it upon himself to nullify FISA. Frankly, the man belongs in prison.

Clapper could have handled things differently. It wasn’t an “impossible situation” and he could have just said ” I can’t answer the question except in closed session”. Once he perjured himself, (and it was discovered) resignation was really the only honorable option.
If this was the UK, he would have likely already resigned.

What you’re saying is “I believe such collections are wrong and the government shouldn’t be allowed to do them.” Fine, you’re entitled to your opinion.

What you’re not entitled to is factually false assertions that certain types of information are subject to a warrant requirement when the Supreme Court has ruled they are not.

You think the government shouldn’t be allowed to collect and analyze this stuff without a warrant? Then get on the horn to your Congressperson and petition them to introduce legislation that would create a statutory warrant requirement, as some states (California is one, as I recall) have done.

Until then, both the law and Supreme Court rulings are clear: metadata requires only an administrative subpoena.

We’ll have to disagree on that one. Him directing the discussion to a closed hearing within the context of an open hearing would only have confirmed that there was something of substance to the Congressman’s question which could only be discussed in secret.

The best response would have been to indicate, when made aware that Wyden intended to ask it, that he would either refuse to testify altogether or only testify about the matter in a closed session of the intelligence committee. Wyden knew that asking the question where he did was illegal – he just didn’t care, because his cause is apparently more important to him than the law is. That in and of itself argues for removing him from the intelligence committee.

The public is not the only party that was not allowed, by law, to be informed of the program’s existence / activities. The other members of the committee in question who are not also members of the intelligence committee or the speaker / minority leader are not authorized to receive the information either.

If they have a problem with that state of affairs, they can look in the nearest mirror – because they created it. If they want it changed, well, Congress passes laws. They can change their own law if they’re so inclined. Until they do, Clapper has to obey the ones that are in effect now. He did so.

Read Smith v. Maryland and get back to me. It isn’t YOUR data. It belongs to the phone company, to which you willingly and voluntarily released it when you chose to make a phone call in full knowledge that the information would be recorded and maintained by said phone company. You cede any expectation of privacy when you do that; the 4th Amendment doesn’t protect voluntarily revealed information.

At some point in the now-distant past (and I’m talking switchboard times here), the phone companies probably weren’t making records of each phone call. So I’m just going to claim I expect privacy because that’s the way it used to be. (I’m joking.)

But seriously, I do have a question. I actually *would* generally expect privacy when giving information to a private company (this is a personal feeling, not a legal feeling – I am legally naive as I often point out). I mean, I tell my doctor things that I’d rather not everybody know, although I understand there are medical record protection laws. Is that really the only difference? That there’s a special law covering medical records? And there’s a special law covering wiretapping, otherwise AT&T would record every one of my conversations?

Actually, they generally did so more prevalently back then than they do today – for the simple reason that they individually billed by the call for long-distance services. They had to document each and every call to ensure that they weren’t missing revenue.

Honestly, absent HIPAA and various state level statutory protections, your doctor would be free to reveal your medical information to pretty much whomever he chose. While unethical, and certainly cause for professional sanction, he wouldn’t otherwise be violating any legal expectation of privacy. Likewise your priest (whose privilege against revelations are protected by the rules of federal criminal procedure and various state level regulations) and your attorney (for obvious reasons).

Generally speaking, the rule is that absent explicit statutory / regulatory restrictions to the contrary, you cede any reasonable expectation of privacy whenever you reveal otherwise privileged information to a third party, most especially in the case of third-party business records (given that the 4th Amendment protections afforded to businesses are somewhat less than those you enjoy as an individual person).

Phone conversations remain protected, as you have a reasonable expectation that the phone company isn’t listening to the content of your conversations. Listening in on those actually requires PC and a valid warrant.

Sorry if you find it tedious, but since my memory goes back longer than two days I still remember you opining that the Baltimore would be improved with the mass murder of just about anyone who didn’t respect those in your social class.

It’s not my fault you chose to let your mask slip when you started hyperventilating about all those lazy, shiftless minorities stealing all your tax dollars.

You’re advocating the exact wrangling that affords exploitation and denial of constitutionally protected actions. This isn’t an indictment on you, personally, rather how our legal system has evolved in order to subvert said protections. The issue isn’t that Wyden summoned Clapper, it’s that Clapper ultimately perjured himself. Stating otherwise is diverting from the core issue at hand: the U.S. Government intruding on protected rights of citizens.

I would be interested to know what your personal opinion is. Do you think the protection of classified information trumps privacy?

Yeah, wr! How dare you hold HLS92 responsible for the things he said! Don’t you know he should be allowed to spew the most racist venom and then have us all agree to forget that it ever happened? What kind of a world would it be if people had to be held to any kind of account for the things they did and said?

And I suppose this is as good a place as any to take up the question abovethread, re the claim that privacy is a quaint, antique notion with no place in our modern world: what is your real name and what firm do you work at? It’s not, after all, as if you have any real privacy interest in this information, what with there being no such thing….

Lets say it was legal and constitutional to kill jews in Germany (even though we may not agree with the law), then according to Harvard Law, we could not prosecute Nazi’s since it was the law of the land and they were just following the law.

Similarly, Clapper can lie with impunity (according to HL92) since its not illegal to collect meta phone data under whatever legal section HL92 chose to cite.

Jack is saying there is a bigger wrong being committed (and maybe the recent circuit court agrees) but he can’t cite the specific law, but knows “pornography” when he sees it.

HL92 is like the Nazi lawyer saying it was legal during Krystallnacht to burn Jewish stores therefore, bug off Occupation attorneys, since technically the state fostered the environment and legally sanctioned Jewish pogroms, ergo no crime here, move along. Just cause you don’t like anti semiticism as a normative judgement doesn’t mean that Nazi’s were guilty of any crime at the time, since there were no laws outlawing burning down a Jewish storefront.

Simlilarly, sorry Jack, but HL is saying the same thing here. Yes, Clapper is a horrible dipschtt but he is legally entitled to be a horrible dipschitt since the laws are technically being “obeyed’.

@the Q: This analogy fails because lying to protect classified information from disclosure to unauthorized parties isn’t even remotely beginning to entertain the thought of possibly starting to seem the least bit similar to Kristallnacht.

Lets say it was legal and constitutional to kill jews in Germany (even though we may not agree with the law), then according to Harvard Law, we could not prosecute Nazi’s since it was the law of the land and they were just following the law.

Under German law as it existed at the time, it was both. Nuremberg was not predicated on German law.

It’s also worth noting, since you injected it, that Nuremberg had no jurisdiction whatsoever over anything that occurred in Germany prior to September 1, 1939. No one was ever punished at those tribunals for Kristallnacht.

As for the rest of your Godwin, I’m not going to dignify the absurdity of your equating perjury with genocide or equating a Jew (me 😐 ) with the Nazis.

You say that as much as Jack wants to rant about Clapper being a perjuring Nazi, in your opinion he was right in lying and was justified according to recent court cases which allow the government to essentially invade whatever privacy they want since its “legal” and besides, privacy is a “myth” according to your normative judgement.

Jack is incensed that it should be a crime to lie to Congress and that the program should be illegal.

You stated otherwise ad nausem.

So, my point was, Clapper, like the Nazis were following the law, however much we might not like it. Ergo, nothing illegal here. Some countries execute journalists, Thats their law. Ergo, nothing illegal there.

Killing Jews in Germany not a jailable offense. Clapper lying to Congress according to you, not a jailable offense.

This has nothing to do with you being Jewish. How could anyone know your ethnicity?

This has everything to do with a non normative approach to who decides who is breaking the law and whether that law may be justifiable.

Jack says Clapper (like the Nazis) guilty of a higher offense which goes beyond the law. You argued the law is the law, ergo, no perjury. Krystallnact, was hideous, but lawful. Like Clapper’s testimony.

@the Q: I have had an interest in the Nuremberg trials so your Godwin stirred me up enough to go back an hour or so and resurrect it. Here’s the thing you overlook: They were military tribunals. The defendants were charged with violations of the rules of war and of various conventions (the Hague Convention of 1907 for one, the League of Nations Treaty — thank you to wikipedia).There are quite a few respected voices that over the years have questioned the legitimacy of the trials; the victors who were not blameless applied laws that the defendants did not acknowledge. The Chief Justice of SCOTUS called the trials a ‘lynching’.

If an appropriate Original Post ever appears I’d love to grab hold of that argument and wrestle with it. In this particular case, however, you are confusing apples and oranges. And anyway, there were attorneys who represented the accused. And good for those brave German lawyers; think of what THAT must have been like in the virtual shadow of the Soviet army.

@wr: @Rafer Janders: May I say, as someone who has embarrassed myself here, that there is a time for decent people who mean well and relish debate to LET SH!T GO. We had 700 comments on this topic. HarvardLaw has offered all the apology for his remarks that he’s likely to give. He sounded like an @ss when he wrote that stuff. Now it you who sound like an @ss. A couple of weeks ago I sounded like an @ss. It’s even. Let it go, please.

@HarvardLaw92: OOPS! Our esteemed friend and opponent in this debate, Mr Jack responded to a post where I said that looking at the outside of his house was a proper analogy to telephone surveillance by saying that the correct comparison was the Gov’t using IR technology to find heat sources (for grow-houses). Which has been determined to be an unconstitutional “search”. I remembered that a Marvel character had infrared energy coming out of his eyes so I looked him up. And then cleverly clicked “reply” to your post instead of his.

@HarvardLaw92: To piggyback and expand a bit, Clapper was on the horns of a dilemma: either he could lie to Wyden, thereby breaking a law, or he could reveal the existence of a classified program, thereby breaking a law. In his judgment (which I, as a person who works on a classified program daily, both agree with and hope I will never have to exercise myself), lying to Wyden was the lesser evil. While doubtless illegal, it did not also contain the risk of doing exceptionally grave damage to America’s national security.

It’s unlikely he will ever be prosecuted for it because those who would prosecute him understand this and are willing to cut him some slack given the literally impossible position in which he was placed.

@JohnMcC: It’s one thing to let shit go. It’s another thing to put an argument into context. And the context of just about every argument HL makes is that the sole appropriate role of the power structure is to maintain the privileges of the privileged classes, whether that means allowing the “important” people to perjure themselves without penalty or punishing any poor folk who have the temerity to demand equality of treatment.

There’s a straight line that runs through every one of his posts. And so when he makes an argument and claims it’s based in law, it’s worth observing the real prejudices that drive his legal opinions… which basically come down to “us good, them bad.”

(And to be fair, I don’t believe I contributed a single message to the HL-Baltimore massacre, since I was in Beijing at the time and there were pretty girls to talk to.)

@Jack: If the Supreme Court says collecting such data is constitutional, what are you going to do about it? Still call it unconstitutional?

(I swear, a bunch of you on BOTH the far right and far left seem to be operating in a world where there exists a Platonic Constitutional Right which somehow lives above and beyond Supreme Court decisions as Ultimate Truth.)

To be fair, I think that is your issue, not mine, but like i said, if you want to keep beating that drum, it’s your right. I’ll respond to on topic points if you care to make any, but personal grievances and gripes will be given the degree of consideration that they merit – which is to say none.

@wr: “…I don’t believe I contributed a single message to the HL-Baltimore massacre…” In that case I sincerely apologize for painting you with that brush. It was ugly to read and I needed a program to keep track of the players.

I get the vibe that you are describing in HarvardLaw’s posts. OK. But he has had some of the unfortunate junk that he wrote while in a quite churned up state thrown back at him even though (at least it seemed to me) he moderated his tone substantially. He also apologized although some might have wanted a more abject apology. As you say and I agree, our HarvardLaw doesn’t do ‘abject’.

Opposing his viewpoint on the topic at hand is what we’re all about here. Throwing something said days & weeks ago is counter to that. I’m myself prone to flying off the handle (particularly when etoh is involved — maybe it’s the Irish heritage). I’d take it poorly if stupid remarks I’d made were tossed back at me particularly if they’re off-topic remarks.

@grumpy realist: Took your advice and have been following Rod Dreher. As always, check up on the comments. How funny that you’re here arguing for a Nominalist constitution as opposed to a Platonic constitution.

@JohnMcC: Once again, we’re in violent agreement. I like many quite different things that the master distilleries of the Commonwealth do with corn mash (or, for that matter, rye) but have never had one that wasn’t barrel aged that I cared for.

@HarvardLaw92: I dunno. Send me a couple of bottles and I’ll see. (Actually, my budget probably doesn’t match yours but I try to keep a quality Scotch in my little corner of the kitchen. Today it’s Laphroaig 10yrs. I’ve found I like the Islay islander’s work. But the truth is I slightly prefer Woodford Reserve bourbon – and I was able to buy the ‘select’ brew.)

James, do you really think there are 21 people following this dead thread (which recently consists of “off-topic nonsense”), or do you think voting manipulation should be ignored? Both possibilities are amazing, and I can’t think of any others.

Eh, smoky just isn’t my thing aside from gravlox, and even then I’m picky about how much smoky flavor I’ll tolerate. I don’t much care for rauchbier either. I respect the quality, but I just don’t enjoy the taste.

@HarvardLaw92: Well, “de gustibus non est disputandum.” For me the acquired bit of Islay scotch was the peatiness–it initially hit me like a mouthful of iodine. But I’ve grown to enjoy it quite well.

I once had Schlenkerla Rauchbier fresh from a wooden keg, served at the little window in Bamberg through which they’ve been selling it since the 15th century. That was among the top five beers of my life.

I’m a pretty big aficionado of Scotch, so I honestly tried to like it, I really did, but it just wasn’t happening. They’re exceptional works of the distiller’s art, IMO, but I just can’t get past the house on fire sensation.

LOL, I ended up searching for the Listerine to get the aftertaste out of my mouth. *shudder*

@HarvardLaw92: I hope you like it as much as I did. A good friend shared the last of his bottle with me before moving out of the country for work.

In scotches I have about 20 bottles, I do keep a couple Balvenies (DoubleWood 12 and Caribbean Cask 14) as I have a soft spot for those. I didn’t drink any whisky (or whiskey) for about 30 years due to some teenaged idiocy with bad bourbon, until a friend offered me some of the DoubleWood and I decided to give it a try. Instant love, haven’t looked back.

For bourbon I have a couple, I like Eagle Rare, Elmer T. Lee and Blanton’s.